In re G (Children) (Care Order: Threshold Criteria)

The threshold for care or supervision orders must be crossed when the local authority first intervenes to protect the child. Later evidence may be used to establish what the position was at that date. Later events may also be considered for that purpose if they are capable of showing that the relevant risk already existed, although the court must assess their evidential weight carefully. Authorities must have reasonable grounds for believing that the threshold criteria exist and cannot issue proceedings merely in the hope that supporting material will emerge. Once the threshold is crossed, the court must decide whether an order serves the child’s welfare, applying the statutory welfare principles.

Hampshire and Surrey county councils sought care orders for D and E, two children of the same mother. The proceedings arose after D had been removed into foster care and E had been placed there shortly after birth. The local authority’s care plan was adoption.

His Honour Judge Cook found that the threshold under Children Act 1989, section 31(2), was not proved for D but was proved for E. He made a supervision order for E and refused a care order. The local authority appealed on the law and merits. E’s parents sought permission to cross-appeal against the threshold finding. The central issue was whether later evidence and events could be used to prove that the statutory threshold existed when proceedings commenced.

1. Appeal outcome. The appeal concerning D was allowed to the extent that the threshold was found proved and a supervision order was made. The appeal concerning E was dismissed. Permission to appeal to the House of Lords was refused.
2. Relevant date. Under Children Act 1989, section 31(2), the threshold must be satisfied at the date when the local authority first intervened to protect the child. This was the date of the application, or, where protective measures had continuously preceded the application, the date those measures began. The approach in Re M (A Minor)(Care Order: Threshold Conditions) [1994] 2 AC 424 was explained and applied.
3. Later evidence and events. Evidence acquired after the relevant date may be used to show what the circumstances were at that date. Later events may likewise be admitted where they are capable of proving that the relevant risk already existed. The judge must decide what weight to give them. Later events cannot be used simply to validate an application that lacked a proper factual foundation when issued.
4. The safeguards in section 38(2) and section 38(6) prevent proceedings being launched without reasonable grounds for believing that the threshold exists. A deficient application may also be summarily dismissed or challenged by judicial review.
5. The trial judge had wrongly excluded later-acquired information about the mother’s abilities and parenting capacity when deciding whether D was at risk in June 1999. Properly assessed, that evidence established the threshold for D as well as E.
6. Once the threshold was crossed, the judge was entitled to prefer the competing professional evidence and conclude that supervision, rather than care, orders best served the children’s welfare. The court also upheld the exclusion of an inadequate expert report, applying the distinction explained in Re B (Sexual Abuse: Expert’s Report) [2001] 1 FLR 871.

• Guildford County Court: His Honour Judge Cook refused a care order for D, finding the threshold unproved; found the threshold proved for E but made a supervision order.
• Court of Appeal: The appeal was allowed for D to the extent of finding the threshold proved and making a supervision order, and dismissed for E.